Sovereign Immunity can prevent Rule 202 pre-suit discovery. .. maybe
Susan Combs, Texas Comptroller of Public Accounts v. The Texas Civil Rights Project et al, No. 03-11-00538-CV (Tex. App. Austin, August 29, 2013).
OK, this one has some interesting holdings which can affect not only PIA release of private information (even though this is not a PIA case) but also several litigation matter types. The opinion includes a concurrence and dissent.
In this case, the Comptroller’s office accidentally left electronic information, specifically addresses, social security numbers, and birth dates, of approximately 3.5 million Texans on a computer terminal accessible to the general public. After the error was discovered the information was removed. The Plaintiff did not file suit, but sought pre-suit depositions and discovery under Rule 202 in order to determine if it had a claim against the Comptroller. The Comptroller filed a plea to the jurisdiction holding the trial court did not have jurisdiction to order pre-suit discovery. The trial court denied the plea, ordered discovery and the Comptroller appealed.
The court first analyzed whether a 202 petition is a “suit” which could be subject to sovereign immunity. After an analysis the court ultimately held “a petition under rule 202 is ultimately a petition that asserts no substantive claim or cause of action upon which relief can be granted. A successful [R]ule 202 petitioner simply acquires the right to obtain discovery—discovery that may or may not lead to a claim or cause of action.” As a result, immunity does not bar a 202 petition by itself. However, a court cannot grant a petition for discovery in a matter if immunity would bar the type of claims being investigated. The pleading requirements are less stringent to establish jurisdiction since the point of the discovery is to investigate to determine if a claim exists. However, more of a pleading requirement is necessary if the investigated claim implicates sovereign immunity. Plaintiff asserts it is investigating potential ultra-vires claims (and lists the reasons why) against Combs, which the court notes is sufficient under Rule 202 to allege a claim. However, since no relief can be sought for Combs unauthorized release of information (because its retrospective), the only purpose would be to prevent future disclosures. Since the pleadings indicate the release was unintentional and the evidence indicate Combs’ actions to prevent future unintentional releases, no prospective relief can be granted. So, the court held no valid lawsuit can be brought so no discovery can be ordered. The trial court therefore did not have jurisdiction to hear the 202 Petition.
The concurring opinion agrees mainly with the reasoning but disagrees with some of the burden shifting. The dissent by Chief Justice Jones actually agrees with the majority that a Rule 202 petition is not a lawsuit, immunity cannot bar such petitions in general, and that Rule 202 cannot be used for discovery where the claims being investigated are barred by sovereign immunity. He also agrees the pleading requirements for 202 petitions is less stringent than general pleadings. As far as those issues are concerned, you have pretty much a unanimous opinion. However, the dissent essentially asserts that regardless of the underlying claim success, an ultra-vires claim is something the court has jurisdiction over so can grant pre-suit discovery.
If you would like to read this opinion click here.